ligence 9ft1;J.e corporatlo:tl.;and tblswarranted the jury in rendering a verdicqnfavor of plalntiff; and it was wholly immaterial whether he was asuitablej skilled, .or reliable servant. 3. The'defendant further requested the court to give the following instrllction:' .
"(4) The master is never liable for injuries received by Ii. workman in its employ if the injuries are the result of any negligence on the part of the person i;o,jured, That is what .the law calls 'contributory negligence,' And if you find :erom the. evidence :that the accident which caused the plaintiff's injuries was in any manner the result of want of ordinary care on the part of the pl1l.l.ntiff to avoid the accident 'and escape the damage, the plaintiff cannot recover,and your verdict must be for the defendant,"
modified by adding thereto the words:
"Unlessyqu also find from the evidence that the defendant was guilty of gross negligen,ce, and the plaintiff's negligence was slight,"
The court did not err in making this modification. Beach, Contrib. Neg. § 9. The judgment of· the district court is affirmed, with costs.
HARRINGTON v. HERRICK. (Circuit Court of Appeals Ninth. Circuit. October 24, 1894.) No. 126.
DEATH OF PARTNER-SUBSEQUENT ACTION ON FIRM NOTE.
2 Hill's Ann. St. and Gode Wash. §§ 947-953, provide that on the death of a member of a partnership his administrator shall include in the inventory, in a separate schedule, all the firm's property, and be entitled to its custody and control .for the purposes of administration, and that hp shall give bonds In a sum double its value, and administer thereon the same MOn estate$ of decedents, unless the surviving partner shli.ll within five days after the inventory Is filed, or such other time as the court allows, apply for administration of the copartnership estate, and give bonds in a sum double the value of the property. lIelli., that, where one of the members of a partnership dies, and his admInistrator administersthe firm'S estate because of fallure of the surviving partner to apply for' administration, such administrator is not a necessary party to an action against such survivor on a note given by the firm.
Error to the United States Circuit Court for the District of Washington, Northern Division. Action by E.M. Herrick against W. A. Harrington, surviving partner.of the firm of Hllt+ington & Smith, on promissory notes executed by such firm. There was an order sustaining a motion to strike defendant's, in abatement, and a judgmentfor plaintiff. Defendant brings ,err()r. Atlh'D1ed. ,
Plaintiff in .tbecourt below brought his action. against the defendant upon four lJromissory notes executed .in the firm of Harrington & Smith, averrlng· that the defendant, 'v.I. A. Harrington, and one Andrew SlIllth at the date ,of· the. execution· 'otsald notes,· copartners doing asmerchaIlts, at the· city of in the state of Washington, and at the city of San Fra,1J.<liscQ,qal.,under the firm name and style of The compl1l1nt also averred that prior to the cornmencementliOf the action the said Andrew Smith died, in the state of Califorwa,- IU1d that the defendant, Harrington,was "the only surviving
HARRINGTON V. HERRICK.
member of the sald firm of Harrington & Smith. To this action the defendant filed a plea In abatement, to which the court below sustained a demurrer. The defendant thereupon 1l1ed an amended answer, which, after traversing certain of the allegations of the complaint, set forth certain affirmative defenses. and concluded with the following plea in abatement: "Division X. "Further answering, and for plea in abatement herein, defendant states: "(1) That there is a defect of parties defendant in this action, to wit, that the said action Is based upon four separate and distinct obllgations In writing, each of whIch is a joint obllgation executed in the name of Harrington & Smith, a copartnership consisting of W. A. Harrington and Andrew Smith, and existing at all the times in plaintiff's complaint mentioned up to the 31st day of December, 1891, when the said Andrew Smith died. "(2) That under and by virtue of the laws of the state of WashIngton It is provided that in the case of the decease of one of the members of a copartnership the executor or administrator of such deceased copartner shall include in the inventory of such person's estate, in a separate schedule, the whole of the property of such copartnershIp, and shall be entitled to the custody and control of all the copartnership property for the purpose of administration, and shall give bonds of double the value of the copartnership property, and shall administer thereon in the same manner as provided for the administration of the estates of deceased persons, unless the partner shall within five (5) days from the filing of said inventory, or such other time as the court may allow, apply for the adminIstration of such copartnership estate, and give bonds therefor in double the value of such property. "(3) That on the 11th day of March, A. D. 1892, by the order of the superior court of the state of Washington, county of King, sitting in probate, A. E. MacCulsky and Frank Hanford were duly appointed such admInIstrators of the estate of the said Andrew Smith, deceased, In the state of Washington; and this defendant, W. A. Harrington, having waived his right to the administration of said copartnership estate, and consented thereto, the said A. E. MacCulsky and Frank Hanford were by the orders of said court upon said date duly appointed administrators of the entire estate of the said copartnership of said Harrington & Smith. "(4) That the sald administrators have duly qualified, and have given bonds for double the value of the said copartnership property in the manner provided by law, and have entered upon the discharge of their duties as such administrators, and taken into their possebsion, custody, and control the assets of the said copartnership, and are now proceeding to administer thereon in the manner provided by laws of the state of Washington. "(5) That the said copartnership property is within the state of WashIngton, and within the jurisdiction and control of the said superior court sitting in probate, and is now in process of administration.as aforesaid. "((3) That by reason of the premises hereinbefore set forth this defendant flas not possession of the copartnership property, and lias no control thereof as the surviving partner of the said copartnershIp of Harrington & Smith or otherwise. "(7) That by reason of the premises aforesaid the said administrators of the estate of the late copartnership of Harrington & Smith aforesaid, to wit, A. E. MacCulsky and Frank Hanford, are necessary parties defendant herein, and are within the jurisdiction of this court, and the process of this court can be duly and legally served upon said administrators; and that defendant avers that without the presence of the administrators herein as parties defendant to this action all of the rights of the parties to this cannot be fully and finally determined. Wherefore defendant prays: First. That this cause be abated until the said A. E. MacCulsky and Frank Hanford be in and. wade parties defendant to this action as administrators of estate of the said copartne1ship and of the estate of the Baid Andrew Smith."
'J.'he, ,4Jt1tkClt1l1sebeing c!lJj",ll·for trilfl:rQI)'u:t!Ie "20th day of March, 1893... pll;llnti81 ::,moved' the. co]:!J.1;:tQ ,liItrike .from answer the foregoing plea Jp., .ltbawment. whlob .:motton was tllMte<l by the coJ:!rt. and parties as a irene",al: ,Qf. his court said motion, and: Ol'deJed from sllid i answer, to.· wl).ich the· defendant, at the time duly excepted, and his exception was allowed. A jUdgment was thereafter rendered in favor of thelliaintiff and against the defendant in the coui1belpw for the full amount of said notes with Interest. From and the 'fofflgotng Ordel'striking outdtifendant's' plea in said· :tUe said defendif.ftt now appeals to this courfj. Thef<iI16"wmg is thelrtatute law of the state of Washington :in relation to· the' admit1iiltMtion of containedil1 volume 2 of Hill's· Annotated'StMutes and Code 'of Washmgton: "Sec, 947. ii (1435.} The executor or administrator of a deceased person who wasameblber of a copartnership shallltlclllde in the inventory of such person's in a separate schedule, the whole of the property of such· partnershil,}j' and the apPraisers shall estimate the value thereof, and also the value'l)fistich. person's individual Interest in the partnership property, after' the payment or of all the debts and liabilities of the partnership, i ,,'" : '. . :. "See. ·948.(1436.) After the inventory is taken, the partnership property shall bellI tlte'custody and control of the executor or admhiistrator for the purposes 01:, administration; unless the surviving partner' shall within five· days froD1the' filing of the· inventory, .or such .further time' as" the court may the adliUI1istration thereof, 'and give the bond therefor IISec. '949:' (1437.),If the'surviving pa.rtner apply therefor,as provided in the 'he'tsentitledt6 theildminlstration of the partnership estate, if he have tlle qualifications and required fora general administrator'.. He.is denominated an administrator of the partnership, and his extend to tbeSettlementof the partnership business generaUy;:andthepayment or transfer of the interest of the deceased in the partnersliip1)roperty remaining after the' payments or satisfaction of the debtsaridlta1;liUties of the partnership, to the executb'ror general administrator; 'Within. six months fr9Jn the date of bis appointment, or such further as the CQurt may allow. In the exercise of his powers time, if> and hIs duties, .tIle administrator of the partnership is subject to tM same' limitations and liabllities, and control and jurisdiction of tIle "Cotirt,:'llsagenel'al adiilinistrator. . "Sec. 95<VU.438.) 'fhe bond of the admhifstrator of the partnership shall be in Il.'SUWilot lesS than double thevatue of the partnership propertY,and shall be gi...en in the same manner and be of the same effect as the bond ot a general aduiibistrator. . . ' "Sec.9i'i'1. (1439.) In case. the partner is not appointed administrator of the p!U'tnership, the administration thereof devolves upon the exectitorc)f'general admInistrator, but before entering upon. the duties of such administj:'atlQn'he shall give an additional bond in double the value ot the partnel.'l!lllip property. . ' "Sec. 95t/'(1440.) Evety surviving partner, on the demand of an executor or administrator 'of a deceased partner, shall exhibit and give information concerning.the property.of the partnership at the time of the death of the that same be correctly inventoried and appraised: il:l1diIi' 'caSe the administratIOn thereof shall devolve upon the executor . orM:mtnistrator, ,suCh survivor shall deliver or transfer to him, on demand, 8.:U Ute propertY 4:)f the partnership, including all books, papers, and document!! same, and shall affqrd him all reasonable informatiotlliIldfliliJll.tles tor the performanceot the duties of his trust. "Sec..· 81lrviv:in:g .partner.Who l!lball 'refuse or neglect to· comt>!Y wftbthe l'equirementlittif the last section may be cited to appear before theconrti:and unle$shE' show cause to the contrary, the court shall reqUire comply with ;the particular complained of:' The court overtuledthe 'dern:urrer to the' Complaiilt, /md sustained the demurrer to the plea. These rulings are assigned as error.
E. C. Hughes, for plaintiff in error. Wm. Lair Hill, for defendant in error. Before McKENNA, Circuit Judge, and ROSS, District Judge. After stating the case as above, McKENNA, Circuit Judge, deliv· ered the following opinion: It is conceded by plaintiff in error that according to the common law the action was properly brought, and to establish it defendant in error quotes a number of text writers and decisions. vVe may therefore start with this rule as established. It is expressed in Bates on Partnership (section 746), as follows:
"In collecting claims due from the firm by action against the surviving partner the remedy is at law, and not in chancery, for the survivor has all the assets, and there is no need to apply to equity, and the creditor has no lien; and the same principles apply, as nearly as pOEsible, that govern an action by the surviving partner to collect a claim. '1'he surviving partner is severally liable, in all jurisdictions, whether the administrator can also be sued or not. Death severs the promise, and, though it may become joint and several by statute or decision, it is, after death, nowhere joint."
The plaintiff in error, however, contends that the rule has been cbanged by the Washington statute. Counsel say on pages 9 and 10 of brief:
"In Story on Partnership (section 361), it is said: 'The joint creditors of the partnership, while all partners are living and solvent, can enforce no claim against the joint effects or separate effects of the partners except by a common action at law. It is only in cases where there is a dissolution by the death or bankruptcy of one pal·tner that the right of the joint creditors can attach as a quasi lien upon the partnership effects, as a derivative SUbordinate right, under and through the lien and equity of the partners.' It is our contention that it was upon this principle, and this alone, that the right of the partnership creditor to prosecute his demand against the sur· viving partner was originally recognized by the courts. '1'he creditor was deemed to have an equitable right through the lien and equity of the partners to have his demand satisfied out of the copartnership estate. As th" surviving partner had the entire control and power of disposition over this estate, the creditor was permitted to proceed directly against the survivor. In this state, however, a complete substitute is provided by statute for the common-law method of settling copartnership estates."
Counsel, however, do not establish their deduction by any case, and their reasoning is not satisfactoT'Y. The Washington statute does not take away the right a surviving partner has of administering the assets of the firm, but only guards it in the interests of representatives of the deceased partners, by requiring a bond, and substitutes the supervision of the probate court for a court of equity. The obligations of the surviving partner are not released, and the remedies of the creditors are not changed. If this had been the intention, surely it would have been clearly expressed, as counsel for the defendant rightly urges. "No statute," said Mr. Jm'ltice Strong in Shaw v. Hail· road Co., 101 U. S. 565, "is to be construed as altering the common law, further than its words import. It is not to be construed as mak· ing any innovation upon the common law which it does not fairly express." See, also, Burnside v. Whitney, 21 N. Y. 148. Cook v. Lewis, 36 Me. 340, and Putnam v. Parker, 55 Me. 235, are not opposed
to this interpretation of the Washington statute. As the statute requires a bond from the survivillgpartner as a .condition, it follows that until he he may not dispose of any part of the partnership property, nor'is he entitled to its possession, as respectively declared in those cases. It was decided, however, in Strang v. Hirst, 61 Me. 10, that after giving bond a suit for the recovery of assets must be prosecuted in the name of the surviving partners; citing Putnam v.Parker, supra.. . . It is not necessary to pass on the point made by defendant that there can be no reversal in this court for error in ruling on any plea in abatement other than a plea to the jurisdiction of the court. But see Stephens v. Bank, 111 U. S. 197, 4 Sup. Ct. 336, 337. The judgment .of the circuit court is affirmed.
CARLISLE V. COOPER et al. (Circuit Court of Appeals, Second CirCUit. October 25, 1894.)
OosTs-AGAINST THE UNITED STATES.
In the absence of legislation by congress authorizing costs against the government, they cannot be imposed in any suit to which it is a party; and neither the act of June 1, 1872 (Rev. St. § 914), conforming the practice of the federal courts to that of the states where they are held, nor the act of August 1, 1888, authorizing condemnation proceedings, and making similar provision ali! to conformity to state practice, etc., gives such authority., The secretary of the treasurY,on behalf of the United States, instituted in the southern district of New York a suit to condemn certain lands, pursuant to the act of congress of August I, 1888, authorizing such proceedings, -"nd oonlorming the practice, etc., to that in similar proceedings In state courts. After trial, appointment of commissioners, and appraisal, It appeared that the funds appropriated by congress were insuffiCient to pay the award, and the suit was thereupon discontinued. The court, folloWing the provisions of the New York condemnation law, awarded costs to the several defendants, and an allowance to an attorney appointed to represent defendants· not served. Held, that both were unauthorized, .no statute having permitted the rendition of judgment for costs against the United States in such cases, and the allowance being only recoverable in an actionagaiIist the government brought conformably with· .an' act of congress .authorizing such a recovery.
SAMB--FOLLOWING STATE PRACTICE.
In Error to the 'Circuit Court of the United States for the Southern District otNewYork. This was a proceeding by the secretary of the treasury of the United S1:4tes for the of certain real estate in the city of New. "Y"ol:'k, embraced in the block. bounded by Bowling Green, Whitehall,Bridge,and Smw streets, and was in pursuance .of the acts of congrells of August 1, (25 Stat. 357); September 14,: 1888 (25 Stat. 479); . June 28, 1890 (26 Stat. 183); and .of March 3, 1891·(26 Stat. 850). Upon the trial, judgment was given for the petitioner, of appraisal were appointed. One year subsequent and to the filIng of their report, the petitioner having failed to move for